Jand, set and match. By winning the presidential election on November 5, Donald Trump almost assured himself of avoiding prison. As expected, his sworn enemy, special prosecutor Jack Smith, recommended on Monday, November 25, the abandonment of all federal prosecutions against the former and future American president. In the process, Judge Chutkan gave the green light on the aspect relating to the 2020 election. A “major victory for the rule of law”, welcomed Donald Trump.
Jack Smith recommended dropping charges for election interference in the 2020 election, a sprawling case that includes the storming of the Capitol on January 6, 2021. He also gave up pursuing Donald Trump in federal court in Florida for withholding documents classified – technically, he ends his appeal, while Judge Aileen Cannon, appointed by Trump, had canceled the procedure in July, finding that the appointment of Jack Smith was unconstitutional.
A resurrection of prosecutions unlikely
Jack Smith justifies his decision by the position adopted for more than 50 years by the American Department of Justice (DOJ), according to which a sitting president cannot be prosecuted. He notes that the case was “unprecedented” because Donald Trump was indicted by a popular jury before being elected. But after consulting with the DOJ's Office of Legal Counsel, he concluded that the department's doctrine applies.
ALSO READ Why does the transfer of power between American presidents take so long?Smith obtained the dismissal of the charges in Washington ” without prejudice “, which means that the case could, in theory, be resurrected at the end of Donald Trump's second presidency in January 2029. In practice, this is unlikely, says Brad Moss, lawyer specializing in national security issues: “Smith’s decision almost certainly means the end of the federal criminal saga involving Donald Trump. Even if Trump does not pardon himself in the next four years, and even if a Democrat wins the presidential election in 2028, it is unlikely that the DOJ will have any real interest or desire to revive these cases. From an institutional perspective, the DOJ arguably considers the 2024 election to be the end of this issue. »
The DOJ has had its hands full with more than 1,000 Donald Trump supporters being prosecuted for the assault on the Capitol. Jack Smith is partly paying for the reluctance of Attorney General Merrick Garland, who, faced with a politically explosive case, waited almost two years to appoint a special prosecutor responsible for supervising the investigations against Trump.
Latest threat in Georgia
The former president's lawyers then played for time. “They benefited from a compressed judicial calendar and significant delays in the appeals battle over presidential immunity, until the Supreme Court's surprising decision,” Moss said. The body took several months to conclude that Donald Trump could only be prosecuted for “unofficial acts during his mandate”, a complex and late arbitration which made a trial before the election impossible.
For Donald Trump, the legal horizon is quickly becoming clearer. In New York, in the Stormy Daniels case, he was convicted of falsifying accounting documents. But Judge Merchan suspended the sentencing to let the president-elect's lawyers file an appeal seeking a mistrial, which Manhattan District Attorney Alvin Bragg said he would not object to.
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All that remains now is the threat of justice from the State of Georgia. Donald Trump was charged there with conspiring to overturn the verdict of the polls. But the case has dragged on for 18 months with a battle to remove prosecutor Fani Willis, who concealed an affair with one of the investigators she had recruited. Willis won his case at first instance but the arguments before an appeals court, which were to begin in early December, have for the moment been suspended.
“Technically, the Georgia case is still ongoing,” notes Brad Moss. But according to him, “there is now going to be a major legal battle over whether a state criminal case can proceed now that Trump is president again.” »
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